Runoff from residential development results in fine

Ongoing problems at a residential construction site off Link Road have resulted in a rare fine from the Department of Conservation and Recreation, which said sediment coming off the site polluted a small stream and a downstream pond.

According to the order signed in February and out for public comment until April 13, DCR will require the developer to restore 650 feet of the stream, clean out the pond and pay a $8,000 fine.

The penalties come more than a year after a state review of the city’s erosion and sediment control program criticized Lynchburg officials’ oversight on this development in particular. That review, along with problems at the development, pushed the city to reorganize its erosion and sediment department this year to address inconsistencies and better commu-nicate with, and educate, developers.

Still, the owners of the pond, Joe Nelson and Lynn Brooks, worry it won’t get fixed because, they say, the developer doesn’t have the money.

Steven Behnke, the developer of Ivy Creek Park, also wants permission from the city to nearly double the number of houses on the eight-acre tract. Behnke said he needs the additional homes to make money on the development. The request will go before the planning commission April 14.

The new proposal calls for a planned community with a common area, streetlamps, and smaller houses that are closer together and priced under $300,000 — a point Behnke said is critical to success. “It’s a more reasonable amount that people in this area would be willing to spend.”

But Brooks, who owns the Ivy Creek Farm bed and breakfast, and Nelson, whose son, Randy, is a city councilman, worry that building a higher-density development with lower-priced homes could further reduce their property values.

“By doing these downsized homes, they will further depreciate (our) property values and there still won’t be any guaran-tee that they will fix the pond,” Brooks said.

City records obtained through the Freedom of Information Act show that work began on the site, which is a narrow par-cel with a steep hill, in summer 2008 without proper permits or adequate erosion control devices.

For more than a year, rainstorms washed sediment off the site, into the stream and, ultimately, into the Nelson/Brooks pond. The city ordered Behnke to install proper erosion controls and stabilize the soil, but things kept falling apart. Behnke said unusually wet weather, a steep hillside and highly erosive soil were to blame.

In the pond, wetlands and mudflats emerged from what was open water. Behnke said some sediment came from his property, but there was no way to tell how much.

The city ordered work stopped five times, most recently in February. As part of addressing the ongoing problems, ero-sion and sediment control program manager Rob Fowler said the city talked about tapping part of the $482,000 bond Behnke put up to start construction as a way to pay for erosion and sediment control repairs. That’s something the city has not done before, he said. “Hopefully we won’t have to do that, but it is an option. Our goal is to get the site back into compliance.”

That money cannot be used, Fowler said, to pay for repairs to the privately owned pond downstream.

A thin blanket of green grass now covers what once was orange mud. The road into the development is packed gravel, and Behnke said he plans to pave in the next few months.

Since construction started, Brooks and Nelson estimate the pond has lost about three quarters of its depth. Rather than reflect green and blue, the water constantly is muddy orange. Brooks said an environmental contractor estimated the cost of restoring the pond to be in the low six figures.

DCR inspector Ed Liggett said in two years, he’s worked on only a half-dozen penalty orders for erosion and sediment control violations. In addition to the fine, Behnke agreed to submit a plan detailing how he will remove sediment from the stream and the Brooks/Nelson pond. The order also states Behnke will work with the Department of Environmental Quality to make sure he meets regulations.

Brooks and Nelson were initially relieved when they heard of the order, but that quickly faded when Behnke and two real estate agents came to talk about plans.

“He said he does not have the money to do anything in that order until he can do development down there, so that’s what he wants to do,” Brooks said.

Behnke said Brooks’ recollection was incorrect. “I have the money to fix the things that are necessary,” he said. “I was explaining to him it’s not that I don’t have the money, there’s no money left in this project to be going around and just fixing up anybody that says they would like something done.”

The DCR order is a legally binding document and Behnke must show a good faith effort to meet it, Liggett said “When we have folks that can’t comply out of good reason, we work with them. If there is no good faith effort, we do have the option of going to the attorney general’s office and say, ‘we don’t see good faith here. We want you to proceed with litigation.’”

While DCR focuses on a remedy for the Ivy Creek Park property, city E&S officials have drawn lessons from its over-sight of the work. DCR’s review of the city’s erosion and sediment control program strongly criticized the city for its han-dling of the project.

“(Ivy Creek Park) highlighted problems in our program and the inconsistencies we had,” Fowler said. “We learned a lot of things, that we’ve been running a fragmented enforcement and inspection program and that’s why we combined that into one so we can get the consistency we need to stay within the DCR guidelines.”

Among the changes in the city is a new effort to educate developers and city staff on erosion and sediment control laws so there is a stronger awareness of what needs to be done, Fowler said. For example, last week, the city held a training session with DCR, city environmental staff and some area developers.

“We asked them to do that so we can improve our communication, to get the word out that this is serious and this is how we need to do things,” Fowler said.

“We don’t want to impede development, but that development has to move within a process so that it stays within envi-ronmental compliance.

“And there’s a way to do that, and if we’re all working on the same page, then that’s a lot better.”